Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1882

No. 74.
Mr. Holcombe to Mr. Frelinghuysen.

Legation of the United States,
Peking, February 21, 1882.

No. 66.]

Sir: I have the honor to forward herewith for the information of the Department a copy of an order in counsel issued by the Govenrment of Great Britain, dated October 25, 1881, as published in China under the authority of Sir Thomas Wade, the British minister.

While there is much in this order in council which cannot fail to be of interest to the Department, I beg leave, at the moment, to call your attention to that portion of it, numbers 6 to 20, inclusive, which authorizes Her Majesty’s minister in China to make regulations “for the peace, order, and good government of British subjects resident in or resorting to China.”

The Department is well aware that at all of the open ports in China settlements of foreigners have grown up who are exclusively subject to the jurisdiction of their own authorities, and who directly or representatively control the immense and growing commerce between China and foreign countries. These settlements are invariably cosmopolitan in their character, containing representatives of nearly every known nationality and subjects of every type of human government. It has been manifestly necessary to devise some system under which the heterogeneous population could be governed, and due protection assured to the lives and property concerned.

This has been done by the establishment of quasi municipal organizations at the various ports to which have been delegated the powers ordinarily given to similar organizations at home, subject to the approval and general control of the consular and diplomatic representatives interested.

The authority thus given, and under which taxes have been levied, suitable police regulations maintained, roads and streets been built and kept in order, and the health, convenience, and good order of the settlements generally conserved, has almost invariably been exercised with great discretion and good judgment, and has rarely been called in question.

Cases have, however, arisen in which the legality of this entire system has been disputed. Notably at Shanghai in the spring of 1881, Mr. Frank Reid, an American citizen, refused to pay a tax levied by the municipal council, upon the ground that Congress alone could impose such an obligation upon him, and that the United States minister had no power to make him in any way liable to the demands of such a body as the municipal council of Shanghai. The tax was recovered from Mr. Ried through a suit brought before our consul-general, and by an execution levied on Mr. Reid’s property. I inclose a copy of Mr. Denny’s decision.

Although the case ended in the manner described above, there is grave reason to fear that, could the defendant have taken an appeal to a circuit court of the United States, the decision of such higher court must have been rendered in his favor. And this in turn would have been followed by the downfall of the municipal governments at every port in China, through the refusal of the residents to pay the taxes by means of which such governments can be supported.

There is in my opinion little room to doubt that, owing to the lack of appropriate legislation, many things have in the past been done by the officers of our government here which have been really extra legal, so to speak, that is to say not founded on any plain well-defined statute. It is in the highest degree important that acts of this sort should cease. And it is, on the other hand, vitally important, in view of the large and rapidly increasing population and property interests in these foreign settlements in China, that ample power, clearly defined and carefully guarded, should be vested in the proper department of our government to make and enforce suitable regulations, either singly or in concert with other powers, for the control and government of American citizens resident in China.

I beg, therefore, to call your earnest attention to this subject, and to suggest, in default of a better plan, whether such Congressional action may not be secured as will give to the representative of the United States in China, subject to the approval of the President, power similar to that conferred upon the British minister in China by the order in council inclosed.

There is the more immediate occasion for the consideration of this subject, as the diplomatic body here has now under discussion a new series of municipal regulations for Shanghai which have been submitted to us by our consuls, and which it will be my duty to lay before the Department at an early moment.

I have, &c.,

CHESTER HOLCOMBE.

[Inclosure 1 in No. 66.]

Appendix VI.

British order in council of October 25, 1881.

At the court at Balmoral, the 25th day of October, 1881.

Present, the Queen’s Most Excellent Majesty in Council.

Whereas Her Majesty the Queen has power and jurisdiction in relation to Her Majesty’s subjects and others in the dominions of the Emperor of China and the dominions of the Mikado of Japan:

Now, therefore, Her Majesty, by virtue and in exercise of the powers in this behalf by the foreign jurisdiction acts, 1843 to 1878, or otherwise in her vested, is pleased, by and with the advice of her privy council, to order, and it is hereby ordered, as follows:

preliminary.

1. This order may be cited as the China and Japan order in council, 1881.

2. This order shall, except as otherwise expressed, commence to take effect from and immediately after the thirty-first day of December, 1881, which time is in this order referred to as the commencement of this order.

3. In this order—

“China” means the dominions of the Emperor of China.

“Japan” means the dominions of the Mikado of Japan.

“Minister” means superior diplomatic representative, whether ambassador, envoy, minister plenipotentiary, or chargé d’affaires.

“Consular officer” includes every officer in Her Majesty’s consular service, whether consul-general, consul, vice-consul, or consular agent, or person authorized to act in any such capacity in China or in Japan.

“British subject” means a subject of Her Majesty, whether by birth or by naturalization.

“Foreigner” means a subject of the Emperor of China, or of the Mikado of Japan, or a subject or citizen of any other state in amity with Her Majesty.

“Treaty” includes convention, and any agreement, regulations, rules, articles, tariff, or other instrument annexed to a treaty or agreed on in pursuance of any stipulation thereof.

“Month” means calendar month.

Words importing the plural of this singular may be construed as referring to one person or thing, and words importing the masculine as referring to females (as the case may require).

repeal.

4. Subject to the provisions of this order, Articles 85 to 91, inclusive, of the China and Japan order in council, 1865, authorizing the making of regulations for the purposes and by the authority therein mentioned, and the regulations made thereunder, dated respectively 11 July, 1866, and 16 November, 1866, relating to mortgages, bills of sale, and proceedings against partnerships or partners or agents thereof, and Rule 252 of the rules of the supreme court and other courts in China and Japan of 4 May, 1865, relating to proceedings against partnerships, and Articles 117 and 118 of the China and Japan order in council, 1865, relating to foreigners and foreign tribunals, are hereby repealed as from the commencement of this order; but this repeal does not affect any right, title, obligation, or liability acquired or accrued before the commencement of this order.

confirmation of regulations not repealed.

5. Such regulations as are described in the schedule of this order, being regulations made or expressed or intended to be made under or in execution of the powers conferred by Articles 85 to 91 of the China and Japan order in council, 1865, and all other regulations made or expressed, or intended to be so made, and having been approved, or, in case of urgency, not disapproved, under that order, before the commencement of this order, except the regulations expressed to be repealed by this order, are hereby confirmed, as from the passing of this order, and the same, as far as they are now in force, shall be in force, and shall be deemed to have always been of the like validity and effect as if they had been originally made by order in council.

authority for further regulations.

6. Her Majesty’s minister in China may from time to time, subject and according to the provisions of this order, make such regulations as to him seem fit for the peace, order, and good government of British subjects resident in or resorting to China.

7. The power aforesaid extends to the making of the regulations for securing observance of the stipulations of treaties between Her Majesty, her heirs, and successors, and the Emperor of China, and for maintaining friendly relations between British subjects and Chinese subjects and authorities.

8. Her Majesty’s minister in China may, as he thinks fit, make any regulations under this order extend either throughout China or to some one or more only of the consular districts in China.

9. Her Majesty’s minister in China, in the exercise of the powers aforesaid, may, if he thinks fit, join with the ministers of any foreign powers in amity with Her Majesty in making or adopting regulations with like objects as the regulations described in the schedule to this order, commonly called the Shanghai Land Regulations, or any other regulations for the municipal government of any foreign concession or settlement in China; and, as regards British subjects, joint regulations so made shall be as valid and binding as if they related to British subjects only.

10. Her Majesty’s minister in China may, by any regulation made under this order, repeal or alter any regulation made under the China and Japan order in council, 1865, or under any prior like authority.

11.—(a.) Regulations made under this order shall not have effect unless and until they are approved by Her Majesty the Queen, that approval being signified through one of Her Majesty’s principal secretaries of state—save that, in case of urgency declared in any such regulations, the same shall take effect before that approval, and shall continue to have effect unless and until they are disapproved by Her Majesty the Queen, that disapproval being signified through one of Her Majesty’s principal secretaries of state, and until notification of that disapproval has been received and published by Her Majesty’s minister in China.

(b.) That approval, where given, shall be conclusive, and the validity and regularity of any regulation so approved shall not be called in question in any legal proceeding whatever.

12. Any regulations made under this order may, if Her Majesty’s minister thinks tit, impose penalties for offenses against the same.

13. Penalties so imposed shall not exceed the following, namely, for any offence imprisonment for three months, with or without hard labor, and with or without a fine of $500, or a fine of $500 without imprisonment, with or without a further fine, for a continuing offence, of $25 for each day during which the offence continues after the original fine is incurred.

14. Regulations imposing penalties shall be so framed as to allow in every case of part only of the highest penalty being inflicted.

15. All regulations made under this order, whether imposing penalties or not, shall be printed, and a printed copy thereof shall be affixed, and be at all times kept exhibited conspicuously in the public office of each consulate in China.

16. Printed copies of the regulations shall be kept on sale at such reasonable price as Her Majesty’s minister in China from time to time directs.

17. Where a regulation imposes a penalty, the same shall not be enforceable in any consular district until a printed copy of the regulation has been affixed in the public office of the consulate for that district, and has been kept exhibited conspicuously there during one month.

18. A charge of an offence against a regulation made under this order, imposing a penalty, shall be inquired of, heard, and determined as an ordinary criminal charge under the China and Japan order in council, 1865, except that (notwithstanding anything in that order) where the regulation is one for securing observance of the stipulations of a treaty, the charge shall be heard and determined in a summary way, and (where the proceeding is before a provincial court) without assessors.

19. A printed copy of a regulation, purporting to be made under this order, and to be certified under the hand of Her Majesty’s minister in China, or under the hand and consular seal of one of Her Majesty’s consular officers in China, shall be conclusive evidence of the due making of the regulation, and of its contents.

20. The foregoing provisions authorizing regulations for China are hereby extended to Japan, with the substitution of Japan for China, and of the Mikado of Japan for the Emperor of China, and of Her Majesty’s minister in Japan for Her Majesty’s minister in China, and of Her Majesty’s consular officers in Japan, for Her Majesty’s consular officers in China.

prison regulations.

21. The respective powers aforesaid extend to the making of regulations for the governance, visitation, care, and superintendence of prisons in China or in Japan, for the infliction of corporal or other punishment on prisoners committing offenses against the rules or discipline of a prision; but the provisions of this order respecting penalties, and respecting the printing, affixing, exhibiting, and sale of regulations, and the mode of trial of charges of offenses against regulations, do not apply to regulations respecting prisons and offences of prisoners.

mortgages.

22. A deed or other instrument of mortgage, legal or equitable, of lands or houses, in China or in Japan, executed by a British subject, may be registered at any time after its execution at the consulate of the consular district wherein the property mortgaged is situate.

23. Registration is made as follows: The original and a copy of the deed or other instrument of mortgage and affidavit verifying the execution and place of execution thereof, and verifying the copy, are brought into the consulate; and the copy and affidavit are left there.

24. If a deed or other instrument of mortgage is not registered at the consulate aforesaid within the respective time following (namely):

(i.) Within fourteen days after its execution, where it is executed in the consular district wherein the property is situate:

(ii.) Within two months after execution, where it is executed in China or Japan, elsewhere than in that consular district, or in Hong-Kong:

(iii.) Within six months after its execution, where it is executed elsewhere than in China, Japan, or Hong-Kong:

then, and in every such case, the mortgage debt secured by the deed or other instrument and the interest thereon shall not have priority over judgment or simple contract debts contracted before the registration of that deed or other instrument.

25. Registered deeds or other instruments of mortgage, legal or equitable, of the same lands or houses have, as among themselves, priority in order of registration.

26.—(a.) The provisions of this order do not apply to a deed or other instrument of mortgage executed before the commencement of this order.

(b.) As regards a deed or other instrument of mortgage executed before the commencement of this order, the regulations repealed by this order shall, notwithstanding that repeal, be in force, and shall be deemed to have always been of the like validity and effect as if they had originally been made by order in council.

27. The power conferred on the chief justice of the supreme court for China and Japan by article 127 of the China and Japan order in council, 1865, of framing rules from time to time, is hereby extended to the framing of rules for prescribing and regulating the making and keeping of indexes, and of a general index, to the register of mortgages, and searches in those indexes, and other particulars connected with the making, keeping, and using of those registers and indexes, and for authorizing and regulating the unregistering of any deed or other instrument of mortgage, or the registering of any release or satisfaction in respect thereof.

bills of sale.

28. The provisions of this order relating to bills of sale—

(i.) Apply only to such bills of sale executed by British subjects as are intended to affect chattels in China or in Japan;

(ii.) Do not apply to bills of sale given by sheriffs or others under or in execution of process authorizing seizure of chattels.

29.—(a.) Every bill of sale must conform with the following rules (namely):

(1.) It must state truly the name, description, and address of the grantor.

(2.) It must state truly the consideration for which it is granted.

(3.) It must have annexed thereto or written thereunder an inventory of the chattels intended to be comprised therein.

(4.) Any defeasance, condition, or declaration of trust affecting the bill not contained in the body of the bill must be written on the same paper as the bill.

(5.) The execution of the bill must be attested by a credible witness, with his address and description.

(b.) Otherwise, the bill is void in China and in Japan to the extent following, but not further (that is to say):

(i.) In the case of failure to conform with the rule respecting an inventory, as far as regards chattels omitted from the inventory; and

(ii.) In any other case, wholly.

(c.) The inventory, and any defeasance, condition, or declaration as aforesaid, respectively, is for all purposes deemed part of the bill.

30. A bill of sale conforming, or appearing to conform, with the foregoing rules, may be registered, if it is intended to affect chattels in China, at the supreme court; and if it is intended to affect chattels in Japan, at the court for Japan; or in either case at the consulate of the consular district wherein the chattels are; within the respective time following, and not afterwards, namely:

(i.) Within fourteen days after its execution, where it is executed in the consular district wherein the chattels are.

(ii.) Within two months after its execution, where it is executed in China or in Japan, elsewhere than in that consular district, or in Hong-Kong.

(iii.) Within six months after its execution, where it is executed elsewhere than in China, Japan, or Hong-Kong.

31. Registration is made as follows: The original and a copy of the bill of sale and an affidavit verifying the execution, and the time and place of execution, and the attestation thereof, and verifying the copy, are brought into the proper office of the court or the consulate, and the copy and affidavit are left there.

32. If a bill of sale is not registered at a place and within the time by this order appointed and allowed for registration thereof, it is, from and after the expiration of that time, void in China or in Japan, according as that place is in China or in Japan, to the extent following, but not further—that is to say:

(i.) As against trustees or assignees of the estate of the grantor, in or under bankruptcy, liquidation, or assignment for benefit of creditors; and

(ii.) As against all sheriffs and others seizing chattels under process of any court, and any person on whose behalf the seizure is made; but only

(iii.) As regards the property in, or right to the possession of, such chattels comprised in the bill, as, at or after the filing of the petition for bankruptcy or liquidation, or the execution of the assignment, or the seizure, are in the grantor’s possession, or apparent possession.

33. Registered bills of sale affecting the same chattels have, as among themselves, priority in order of registration.

34. Chattels comprised in a registered bill of sale are not in the possession, order, or disposition of the grantor with the law of bankruptcy.

35. If in any case there is an unregistered bill of sale, and within or on the expiration of the time by this order allowed for registration thereof, a subsequent bill of sale is granted, affecting the same or some of the same chattels, for the same or part of the same debt, then the subsequent bill is, to the extent to which it comprises the same chattels and is for the same debt, absolutely void, unless the supreme court for China and Japan, or the court for Japan, as the case may require, is satisfied that the subsequent bill is granted in good faith for the purpose of correcting some material error in the prior bill, and not for the purpose of unlawfully evading the operation of this order.

36. The registration of a bill of sale must be renewed once at least every five years.

37. Renewal of registration is made as follows: An affidavit stating the date of and parties to the bill of sale, and the date of the original registration, and of the last renewal, and that the bill is still a subsisting security, is brought into the proper office of the court or consulate of the original registration, and is left there.

38. If the registration of a bill of sale is not so renewed in any period of five years, then on and from the expiration of that period the bill is deemed to be unregistered.

39. The provisions of this order relating to renewal apply to bills of sale registered under the regulations repealed by this order.

40. A transfer or assignment of a registered bill of sale need not be registered; and renewal of registration is not necessary by reason only of such a transfer or assignment.

41. Where the time for registration or renewal of registration of a bill of sale expires on a Sunday, or other day on which the office for registration is closed, the registration or renewal is valid if made on the first subsequent day on which the office is open.

42. If in any case the supreme court for China and Japan, or the court for Japan, as the case may require, is satisfied that failure to register or to renew the registration of a bill of sale in due time, or any omission or misstatement connected with registration or renewal, was accidental or inadvertent, the court may, if it thinks fit, order the failure, omission, or misstatement to be rectified in such manner and on such terms, if any, respecting security, notice by advertisement or otherwise, or any other matter, as the court thinks fit.

43.—(a.) The provisions of this order, except as regards renewal of registration, do not apply to a bill of sale executed before the commencement of this order.

(b.) As regards a bill of sale executed before the commencement of this order, the regulations repealed by this order shall, notwithstanding that repeal, be in force, and shall be deemed to have always been of the like validity and effect as if they had originally been made by order in council.

44. The power conferred on the chief justice of the supreme court for China and Japan by article 127 of the China and Japan order in council, 1865, of framing rules from time to time, is hereby extended to the framing of rules for prescribing and regulating the making and keeping of indexes, and of a general index, to the registers of bills of sale, and searches in those indexes, and other particulars connected with the making, keeping, and using of those registers and indexes, and for authorizing and regulating the unregistering of any bill of sale, or the registering of any release or satisfaction in respect thereof.

suits by or against partners.

45.—(a.) The following are rules of procedure of Her Majesty’s courts in China and Japan, under the China and Japan order in council, 1865:

(1.) Persons claiming or being liable as partners may sue or be sued in the firm-name, if any.

(2.) Where partners sue in the firm-name they must, on demand in writing on behalf of any defendant, forthwith declare the names and addresses of the partners.

(3.) Otherwise, all proceedings in the suit may, on application, be stayed on such terms as the court thinks fit.

(4.) When the names of the partners are so declared, the suit proceeds in the same manner, and the same consequences in all respects follow, as if they had been named as the plaintiffs in the petition.

(5.) All subsequent proceedings nevertheless continue in the firm name.

(6.) Where partners are sued in the firm-name, the petition must be served either on one or more of the partners within the jurisdiction, or at the principal place of the partnership business within the jurisdiction on some person having then and there control or management of the partnership business.

(7.) Where one person carried on business in the name of a firm apparently representing more persons than one, is sued in the firm-name, the petition may be served at the principal place of the business within the jurisdiction on some person having then and there control or management of the business.

(8.) Where partners are sued in the firm-name, they must appear individually in their own names.

(9.) All subsequent proceedings nevertheless continue in the firm-name.

(10.) Where a person carrying on business in the name of a firm apparently representing more persons than one, is sued in the firm-name he must appear in his own name.

(11.) All subsequent proceedings nevertheless continue in the firm-name.

(12.) In case not hereinbefore provided for, where persons claiming or being liable as partners sue or are sued in the firm-name, any party to the suit may, on application to the court, obtain a statement of the names of the persons who are partners in the firm, to be furnished and verified on oath or otherwise, as the court thinks fit.

(13.) Where a judgment is against partners in the firm-name, execution may issue—

(i.) Against any property of the partners as such; and

(ii.) Against any person who has admitted in the suit that he is a partner, or who has been adjudged to be a partner; and

(iii.) Against any person who has been served in the suit as a partner, and has failed to appear.

(14.) If the party who has obtained judgment claims to be entitled to issue execution against any other person, as being a partner, he may apply to the court for leave so to do; aud the court, if the liability is not disputed, may give such leave, or if it is disputed may order that the question of the liability be tried and determined as a question in the suit, in such manner as the court thinks fit.

(b.) The foregoing rules may be from time to time varied by rules of procedure made under the China and Japan order in council, 1885.

(c.) Printed copies of the foregoing rules must be exhibited conspicuously in each court and consulate in China and Japan, with the other rules of procedure for the time being in force under the China and Japan order in council, 1865, and be sold at such reasonable price as the chief justice of the supreme court from time to time directs.

(d.) A printed copy of the foregoing rules purporting to be certified under the hand of the chief justice of the supreme court and the seal of that court is for all purposes conclusive, evidence thereof.

46—.(a.) The provisions of this order do not apply to proceedings instituted by or against partnership or partners or agents thereof, before the commencement of this order.

(b.) As regards proceedings instituted by or against partnerships or partners or agents thereof before the commencement of this order, the regulations repealed by this order shall, notwithstanding that repeal, be in force, and shall be deemed to have always been of the like validity and effect as if they had been rules of procedure made under the China and Japan order in council, 1865; and, as regards the same proceedings, the rule of procedure (252) repealed by this order shall continue to have effect, notwithstanding that repeal, subject always to the operation of the regulations repealed by this order.

suits by or against foreigners.

47.—(a.) Where a foreigner desires to institute or take a suit or proceeding of a civil nature against a British subject, or a British subject desires to institute or take a suit or proceeding of a civil nature against a foreigner, the supreme court for Japan, and a provincial court, according to the respective jurisdiction of the court, may entertain the suit or proceeding, and determine it; and, if all parties desire, or the court directs, a trial with a jury or assessors, then, with a jury or assessors, at a place where such a trial might be had if all parties were British subjects, but in all other respects according to the ordinary course of the court:

(b.) Provided, that the foreigner first obtains and files in the court the consent in writing of the competent authority of his own nation to his submitting, and that he does submit, to the jurisdiction of the court, and, if required by the court, gives security to the satisfaction of the court, and to such reasonable amount as the court directs, by deposit or otherwise, to pay fees, damages, costs, and expenses, and abide by and perform the decision to be given either by the court or on appeal.

(c.) A counter-claim or cross-suit cannot be brought or instituted in the court against a plaintiff, being a foreigner, who has submitted to the jurisdiction, by a defendant, except by leave of the court first obtained.

(d.) The court, before giving leave, requires proof from the defendant that his claim arises out of the matter in dispute, and that there is reasonable ground for it and that it is not made for vexation or delay.

(e.) Nothing in this provision prevents the defendant from instituting or taking in the court against the foreigner, after the termination of the suit or proceeding in which the foreigner is plaintiff, any suit or proceeding that the defendant might have instituted or taken in the court against the foreigner if no provision restraining counter-claims or cross-suits had been inserted in this order.

(f.) Where a foreigner obtains in the court an order against a defendant, being a British subject, and in another suit that defendant is plaintiff and the foreigner is defendant, the court may, if it thinks fit, on the application of the British subject, stay the enforcement of the order pending that other suit, and may set off any amount ordered to be paid by one party in one suit against any amount ordered to be paid by the other party in the other suit.

(g.) Where a plaintiff, being a foreigner, obtains in the court an order against two or more defendants, being British subjects, jointly, and in another suit one of them is plaintiff, and the foreigner is defendant, the court may, if it thinks fit, on the application of the British subject, stay the enforcement of the order pending that other suit, and may set off any amount ordered to be paid by one party in one suit against any amount ordered to be paid by the other party in the other suit, without prejudice to the right of the British subject to require contribution from his co-defendants under the joint liability.

(h.) Where a foreigner is co-plaintiff in a suit with a British subject who is within the particular jurisdiction, it is not necessary for the foreigner to make deposit or give security for costs, unless the court so directs; but the co-plaintiff British subject is responsible for all fees and costs.

chinese, japanese, or foreign tribunals.

48.—(a.) Where it is shown to the supreme or other court that the attendance of a British subject to give evidence, or for any other purpose connected with the administration of justice, is required in a Chinese or Japanese court, or before a Chinese or Japanese judicial officer, or in a court or before a judicial officer of any state in amity with Her Majesty, the supreme or other court may, if it thinks fit, in a case and in circumstances in which it would require his attendance before itself, order that he do attend as so required.

(b.) A provincial court, however, cannot so order attendance at any place beyond its particular jurisdiction.

(c.) If the person ordered to attend, having reasonable notice of the time and place at which he is required to attend, fails to attend accordingly, and does not excuse his failure to the satisfaction of the supreme or other court, he is, independently of any other liability, guilty of an offense against this order, and for every such offense, on conviction thereof, by summary trial, is liable to a fine, not exceeding $500, or to imprisonment for not exceeding one month, in the discretion of the court.

And the right honorable the Earl Granville, one of Her Majesty’s principal secretaries of state, is to give the necessary directions herein.

C. L. PEEL.

[The schedule to which the foregoing order in council refers.]

I. Regulations made by Sir Rutherford Alcock, while Her Majesty’s minister in China, intituled or designated as Land Regulations, Regulations, and By-Laws annexed to the Land Regulations, for the foreign quarter of Shanghai north of the Yang-king-pang, and commonly called the Shanghai Land Regulations.

II. Port, consular, customs, and harbor regulations applicable to all the treaty ports in China, dated 31st May, 1869.

[Inclosure 2 in No. 66.]

United States court for the consular district of Shanghai.

Shanghai, May 2, 1880.

Before Judge Denny.

Municipal Council	}
v.
F. Reid.

In this case which was heard last Saturday his honor gave judgment this morning as follows:

The municipal council for the foreign community of Shanghai north of the Yang-king-pang, by their secretary bring suit against Frank Reid, a citizen of the United States to recover 10 taels and 72 cents as taxes alleged to be due from the defendant as a householder within the said municipality for the last quarter, 1880, for the month of March, 1881, and for all of the second quarter of this year. While the defendant denies the material allegations of the complaint, yet from the evidence adduced upon the trial it appears that these taxes were charged against him in the usual way, and in accordance with the land regulations which have hitherto governed in such cases, and that payment has been requested by plaintiffs and refused. The defendant denies that the plaintiffs are a legally constituted body and that for this reason he should not be taxed in any way upon their order for municipal purposes or otherwise; that he is a citizen of the United States, and as such only the Congress of his government can constitutionally impose such obligations upon him.

Answering the first objection raised, the plaintiffs, by their counsel, rely for the legality of their action upon the land regulations of the settlement, submitted to the foreign ministers at Peking, and by them approved September 24, 1869, and which went into effect the beginning of the following year. The ministers of the treaty powers, approving the regulations referred to, were those of the United States of America, Great Britain, France, Russsia, and the North German Confederation. But the defendant disputes the authority of the United States minister by that act to make him in any way liable to the demands of such a body as the municipal council of Shanghai.

The United States minister to China is the superior officer of this consulate-general judicially as well as diplomatically, and whatever the result might be, if the law, bearing upon a suit of this nature Was strictly construed, it is a fact of which the court must take judicial notice that the regulations alluded to were approved by the minister for the United States, acting, as he believed, within the scope of his ministerial authority, and which action has been approved by the executive department of his government. Not only this, but for eleven years the validity of these regulations has been maintained and enforced by this court. This, if there were no other reasons, would cause me to at least hesitate before reversing its decisions in this behalf in any ordinary case now. In the next place the defendant claims too much for his citizenship when he says that only the State of New York, of which he is a resident, and the United States Congress have a right to levy taxes on him; for an interpretation so broad would exempt him from all taxation wherever he may choose to go outside of the United States. Neither does the defendant make that distinction which must be made when considering the rights and duties of a citizen at home, and those rights and duties as a permanent or temporary resident of China. Within the United States he is governed by the laws of the State wherein he resides, and by the general laws of Congress. This is not the case, however, in China, for the laws of a State can have no bearing in protecting his rights here, or redressing his wrongs; while those of Congress are only special in their application. The right to live in, and pursue the various business callings in this empire is secured to citizens of the United States by treaty stipulations, and for the purpose of giving force and effect to those stipulations, Congress, by special act, has established ministerial and consular courts, with both diplomatic and judicial powers, the latter being in some respects extraordinary. Within the United States, a citizen cannot be tried for the commission of a felony unless he has first been indicted by a grand jury regularly drawn. And then he can only be tried upon such indictment by a jury of his peers, while in China he is denied both. So, in cases at law, in the United States, he is entitled to have his civil rights passed upon by a jury. This privilege he is denied here. There, he has the right of appeal. Here this right can only be claimed in certain cases. This distinction is not referred to with the view to questioning the wisdom of it, but simply to show that it does exist. Again, United States vessels visiting the different ports of China are entitled to have the services of pilots to take them safely in and out of port, but there is nothing said in the treaty as to the manner of choosing them or of what nationality they shall be. This, however, has been provided for by the Chinese authorities acting in conjunction with the representatives of the treaty powers; neither is there anything said in the treaty of the United States about a tax as a license fee for being protected in this privilege, yet such a tax is demanded by the Chinese authorities and properly collected from American citizens who are engaged in that business here. It is but a legitimate outgrowth of treaty stipulations with this government. The same may be claimed with greater force for the establishment and maintenance of the municipal government for the foreign settlement of Shanghai. The object sought by foreign governments in concluding treaties with China was to obtain commercial advantages and the importance and value of the advantages resulting there from which have for their center the port of Shanghai, already attest the wisdom of such agreements. So important have these interests become, that at least 2,500 foreigners of different nationalities have been drawn here to stimulate and protect them. The magnitude and nature of these interests and the number of foreigners residing here would render it almost impossible for the residents to enjoy privileges conceded to them by the treaty without the aid of a recognized municipality. For on account of the defects in the natural advantages of the port, residents occupying houses anywhere within the business portion of the settlement would continually suffer loss and great inconvenience, if these defects were not cured by local legislation; and so long as persons choose to reside within these improved boundaries and continue to enjoy the advantages resulting from a local government which seems to be so well administered as this, it is but just that they should pay an equitable proportion of the taxes for such purposes.

Judgment for plaintiffs as prayed for with costs.

O. N DENNY,
Consul-General, Acting Judicially.